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Provedoria for Human Rights and Justice (Ombudsmans Office)

Public Report

From the Department of Monitoring and Advocacy

Regarding

State Actions in 10 Districts based on:

Parliamentary Resolution No. 4/2014 4th March,

Government Resolution No. 8/2014 31st of March and,

Government Resolution No. 13/2014 7th of May.

With special focus on the PNTL and F-FDTL Joint Operations in the

District of Baucau

Table of Content

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Contents Abbreviations ................................................................................................................................................ 4

Introduction .................................................................................................................................................. 5

Current Situation ....................................................................................................................................... 5

Actions of Groups ...................................................................................................................................... 6

State Confiscation of Illegal Uniforms....................................................................................................... 6

National Parliamentary Resolution No. 4/2014 .................................................................................... 6

The Actions of the State PDHJ Response ........................................................................................... 7

Second Phase Issuing of Resolution No. 8/2014 by the Government ............................................... 7

Legal Basis: Standards, Principles, Potential Violations and Relevant Legislation ........................................ 8

Mandate of the Provedoria of Human Rights and Justice ........................................................................ 8

Human Rights Standards, Violations and Relevant Legislation ................................................................ 9

Objective ..................................................................................................................................................... 13

Methodology ............................................................................................................................................... 13

Analysis ....................................................................................................................................................... 16

Parliamentary and Government Resolution. .......................................................................................... 16

The PDHJs Perspective on the National Parliamentary Resolution ................................................... 16

The PDHJs Perspective on Government Resolution No. 08/2014 ..................................................... 17

Government Resolution No. 13/2014, 7th of May ............................................................................. 18

Results of Monitoring at the Grassroots ................................................................................................. 18

Baucau ................................................................................................................................................. 18

Freedom from intimidation ........................................................................................................ 19

Freedom of opinion and of expression and the right to receive information and correct

information. ........................................................................................................................................ 26

Right to freedom of movement .................................................................................................. 29

Situation with the Detained in Baucau ....................................................................................... 32

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The Right to Privacy .................................................................................................................... 33

Use of force proportional to the situation .................................................................................. 34

Viqueque (sub-district Uatalari and Uatocarbau) ............................................................................... 36

Aileu .................................................................................................................................................... 37

Ainaro .................................................................................................................................................. 38

Bobonaro............................................................................................................................................. 38

Covalima .............................................................................................................................................. 38

Ermera ................................................................................................................................................. 38

Manatuto (first monitoring in Manatuto and Baucau) ....................................................................... 39

Manufahi ............................................................................................................................................. 39

Oe-cusse .............................................................................................................................................. 39

Categories of Violations Occurring ............................................................................................................. 39

Conclusion ................................................................................................................................................... 41

Recommendations ...................................................................................................................................... 43

Presidency of the Republic ..................................................................................................................... 43

National Parliament ................................................................................................................................ 43

RDTL Government ................................................................................................................................... 43

PNTL Institution....................................................................................................................................... 44

F-FDTL Institution .................................................................................................................................... 44

Public Ministry ........................................................................................................................................ 44

Implementation of Recommendations ....................................................................................................... 45

Annex: Questionnaire and Instructions for Questions. .............................................................................. 46

Questionnaire 1: For Authorities ............................................................................................................ 46

Questionnaire 2: For Beneficiaries .......................................................................................................... 52

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Abbreviations

CRDTL : Constitution of the Democratic Republic of Timor-Leste

CPD-RDTL : Popular Democratic Council-Democratic Republic of Timor-Leste

PD : Public Defenders Office

F-FDTL : Falintil-Frza Defeza Timr-Leste

DNDH : National Human Rights Directorate

DUDU : Universal Declaration of Human Rights

GPGR : Office of the Prosecutor General of the Republic

ICCPR : International Convention of Civil and Political Rights

CP : Penal Code

CPP : Criminal Procedures Code

KRM : Maubere Revolutionary Council

MP : Public Ministry

MJ : Ministry of Justice

ODMA : Monitoring and Advocacy Officer

PDHJ : Provedor of Human Rights and Justice (Ombudsman)

RG : Government Resolution

PN : National Parliament

PNTL : Polsia Nasionl Timor-Leste

RPN : Resolution of the National Parliament

TAKLU : Inhuman and Degrading Treatment

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Introduction

In accordance with the Statutes of the Provedor of Human Rights and Justice, Law No. 7/2004, of

May 26th, (with amendments from Law No. 8/2009) the Provedoria of Human Rights and Justice has the

objective of preventing maladministration and protecting and promoting peoples individual and

collective human rights and fundamental freedoms throughout the entire territory (article 8, paragraph

3). As well as this general objective, the Provedoria of Human Rights and Justice has the competency to

control the functioning of public authorities, particularly government organs and private entities in

accordance with their functions and public services and to conduct investigations of widespread and

systematic human rights violations and mal-administration (article 24, line a.), and to report to

government, the national parliament or other competent organs, in a consultative manner, opinions,

messages, proposals and reports regarding problems in relation to the promotion and protection of

human rights and good governance (article 24, line b.) and to conduct monitoring and reviews of

regulations, administrative orders, policies and practices in vigour (article 24, line d.).

Based on these competencies, the PDHJ determined to conduct monitoring concerning the

implementation of Parliamentary Resolution no. 4/2014 and also Government Resolution No. 8/2014. It

is important to clarify that the PDHJs monitoring was to examine human rights issues arising during the

implementation of these resolutions.

Current Situation

The principle issue of importance at present in Timor-Leste arises from the actions taken by the

PNTL and F-FDTL based on National Parliamentary Resolution No. 4/2014, 4th of March 2014, and

strengthening further the role of the joint operation with Government Resolution No. 8/2014, 31st of

March 2014 and Government Resolution No. 13/2014 of 7th of May, 2014.

Resolution No. 4/2014 states that, as a result of their declared intention to suspend the RDTL

Constitution, bring down the current government and dissolve the National Parliament to conduct a

new general election, the groups including the Maubere Revolutionary Council (KRM) and the Popular

Council for the Defence of the Democratic Republic of Timor-Leste (CPD-RDTL) and other groups are

illegal because of the specific violations of the law noted in Resolution No. 4/2014.

Observing the decision of the national parliament to declare the groups KRM, and CPD-RDTL and

other illegal groups inactive, several civil society groups protested to the National Parliaments claims

and notified them that, there was no relationship between the KRM and the CPD-RDTL. Therefore it is

not appropriate to blame one group because of the activities of another group.1 This holds special

relevance when one of the groups is paramilitary in nature, particularly in relation to its structure,

complete with military uniforms. Other commentators questioned the legality of the Governments own

1 Please see annex 2 Declaration from CPD-RDTL in response to Resolution No. 4/2014

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actions saying that the Penal Code allows individuals to be found guilty of a specific crime but that the

actions of individual members does not allow the State to declare the entire group to be illegal.2 This

declaration also mentions the importance of freedom of expression and the fact that all citizens have

the right to establish groups and to express themselves in public.3

Actions of Groups

Despite this, we know that Sr. Paulino Gama, (also known as Mauk Moruk), leader of the KRM made

a press statement at the KRM Office in Fatuhada, Dili on the 15th of February 2014. During this press

statement, he expressed his unhappiness regarding the governments programs and progress in meeting

the minimum living standards for Timorese citizens. Gama then asked the President of the Republic to

dissolve the National Parliament, and hand over power to the KRM to govern for 6-12 months, while

new elections were organised.

At the same time, there were confirmed reports from civil society groups that members of the KRM,

particularly assembled in the sub-district of Laga, Baucau, had been mobilised in a paramilitary manner,

since at least October 20134. Members of KRM and Bua-Malus paraded using military uniforms and red

berets, and engaged in manoeuvres of a military nature in mountainous areas in the district of Baucau.

State Confiscation of Illegal Uniforms

As a result of these actions, the Government banned the use of military uniforms by non-members

of the F-FDTL and asked all paramilitary groups to hand in their uniforms and any arms in their

possession. Thus the PNTL conducted operations on the 4th of December 2013 in Suco Buruma, Baucau,

against the Bua-Malus group found to be lead by Commandant Labarik. This action was not able to

capture Commandant Labarik, though a total of 74 people were detained for less than one day and

then released without charges.

National Parliamentary Resolution No. 4/2014

Following Mauk Moruks press statement calling for the dissolution of the National Parliament and

the re-organisation of the State, the Government through the National Parliament, issued Resolution

No. 4/2014 considering the individual and collective actions of these groups. These groups were also

declared to be illegal because their members had committed offences against the following laws:

2 SOSIEDADE NIA DEKLARASAUN KONJUNTA kona-ba Operasaun Konjunta hosi PNTL - F-FDTL hodi Implementa Rezolusaun

Parlamentr N. 4/2014 no Rezolusaun hosi Konsellu Ministru sira N. 8/2014 neeb bele asesu liuhosi http://www.laohamutuk.org/Justice/DeklarasaunCSOPNTLFFDTL22Abr2014te.pdf 3 Ibid Article 3

4 Please see Beluns final report on The Ultimatum to Illegal Groups on the 4th of April 2014 -

http://belun.tl/en/alert-ultimatum-on-illegal-groups-3-april-2014/

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RDTL Constitution

Article 43 (Freedom of Association)

Article 146 (Armed Forces)

RDTL Penal Code

Article 188 (Criminal Association)

Article 194 (Abuse of Public Symbols and Uniforms)

Article 195 (Usurping of Function)

Article 202 (Violations against the Democratic Rule of Law)

Government Decree-Law No. 7/2004: Organic Structure of FALINTIL-Forsa Defeza Timor-Leste

Parliamentary Resolution No. 4/2014 then demanded the illegal (banned) groups to cease their

activities as these activities were causing feelings of public insecurity. The resolution then asked the

government, the Public Ministry and the PNTL each to perform their duties, in line with their individual

competencies and take steps to prevent criminal actions.

The Actions of the State PDHJ Response

Between the 5th of March and the 1st of April PNTL responded to Parliamentary Resolution No.

4/2014, by making various arrests, closing down the CPD-RDTL offices, closing the KRM offices, and

removing CPD-RDTL members from State property throughout the entire territory. At that time the

PDHJ implemented urgent monitoring of actions by State actors, to record violations of human rights

and prevent any further actions of a systematic nature (please see part 2 below). The PDHJ also

commenced legal analysis of the actions of the National Parliament as they had demanded the PNTL to

take action against these groups without recourse to the Public Ministry. The PDHJ conducted

monitoring in the districts of Baucau, Ainaro, Manufahi, Aileu and Suai from the 5th to the 31st of March

2014.

Second Phase Issuing of Resolution No. 8/2014 by the Government

Then the National Parliament produced Resolution No. 4/2014 which empowered the PNTL in 13

districts to put a stop to the activities and movement of the CPD-RDTL, Maubere Revolutionary Council

(KRM) and other illegal groups, that were creating instability and threatening the State. However good

cooperation was not forthcoming from the illegal groups already identified, particularly in the district of

Baucau. Reality in the field showed that, many of the groups members had moved away and fled to

gather at Mount Matebian. Thus on the 3rd of April 2014, the Council of Ministers issued a further

Resolution, No. 8/2014 giving the role to PNTL and F-FDTL to conduct a joint operation to bring to a total

stop the activities of the CPD-RDTL and KRM groups. The joint operation based on the Resolution in

question only applied in two districts; Baucau and Viqueque. Based on the implementation of this

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resolution, the PDHJ Department of Monitoring and Advocacy conducted monitoring to observe and

ensure the process of implementation did not give rise to violations by the joint force against the

community and these groups.

Based on the results of observations of the implementation of Resolution No. 4/2014 from the

National Parliament, it was shown that, there were unauthorised searches (no court ordered warrant) of

houses of members of CPD-RDTL, and several houses were destroyed in Covalima near the CPD-RDTL

Office. Some findings indicated that there was a lack of socialisation from the government through local

authorities to group members prior to the operation. This resulted in many people fleeing from their

homes to stay elsewhere.

Even so, there was a second operation, composed of the PNTL and F-FDTL institutions to capture

KRM and CPD-RDTL members who had been identified and had not handed themselves in. In analysis of

this fact, the PDHJ as the State institution that exists to guarantee the work of public entities does not

give rise to violations of human rights against members of the public, noted therefore a real need for

direct observations and interviews of group members about the joint operation of PNTL and F-FDTL.

In other aspects the PDHJ received information from NGOs about the joint operation giving rise to

human rights violations. There were allegations that these were committed by Security and Military

Forces in the area of the sub-district of Laga, Baucau. In order to provide evidence of this information,

there was a real need for the presence of the PDHJ in the area referred to in order to conduct

monitoring.

Legal Basis: Standards, Principles, Potential Violations and Relevant

Legislation

Mandate of the Provedoria of Human Rights and Justice

Refer also to the Statutes of the Provedoria of Human Rights and Justice, Law No. 7/2004, and its

articles which detail the mandate and role of the PDHJ as follows:

Art 24 regarding Oversight and Communications, (letters a and b) state that:

(a) to control the functioning of public authorities, particularly Government organs and private

entities in accordance with their duties in the delivery of public services and to be able to

conduct investigations of systematic and widespread human rights violations and mal-

administration.

(b) to report to the government, the national parliament or other competent entities, in a

consultative manner, opinions, communications, proposals and reports regarding problems

relating to the promotion and protection of human rights and good governance.

Art 30 regarding the duty to provide information to the public states that:

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The PDHJ is required to provide information to citizens about their activities and the matters

within the Provedors mandate, and should be available to any persons who want to take this

information, report a complaint or request an explanation about the problems addressed.

Art 33 regarding the duty to work jointly with other entities (line 1) states that:

1. The PDHJ has the duty to maintain strong relationships with institutions such as State organs

and entities within Timor-Leste, to be able to accelerate common policies and practices, and to

build good working relationships.

Art 34 regarding the duty to submit reports (lines 2 and 3) states that:

1. When situations require, the PDHJ can decide to issue public information statements directly to

the public regarding its opinions, communications and reports in relation to specific cases and

its activities.

2. Any publicity issued by the PDHJ must be balanced, fair and correct.

Art. 35 regarding Initiatives states that:

The PDHJ undertakes its role in response to complaints or declarations reported by individuals or

groups and on its own initiative.

Article 8 of the PDHJs Organic Law, in referring to the Directorate for Human Rights, states:

e) Develop and implement monitoring activities regarding the actions of authorities, based on the

strategies identified in their areas of specialization;

f) Study and analyse national and international standards of human rights implementation;

g) Prepare opinions regarding laws and public policy and their compatibility with national and

international human rights standards;

h) Propose recommendations to prevent and to ensure accountability for violations and develop

and strengthen mechanisms for authorities to implement human rights;

i) Coordinate reports and publications in the area of human rights and submit reports to

international human rights bodies;5

The principle objective of monitoring activities is to identify systematic violations of human rights

with the intention of preventing further violations in the future. Monitoring activities also serve to

monitor the functioning of public authorities in providing services to meet the needs of the community

and in respect of individual human rights. By this means, the PDHJ can identify the causes that give rise

to violations. The Provedor has the legal duty to identify the causes that give rise to violations.

Human Rights Standards, Violations and Relevant Legislation

Based on Resolution No. 8/2014 and based on the activities seen by the PDHJ monitoring team

when conducting monitoring regarding Resolution No. 4/2014, the following standards from

international and domestic law are considered important:

5 Decree-Law No. 25/2011, Organic Law of the PDHJ, Art. 8 Sec. E-I.

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Principle 1: Security All people have the right to personal security.6 This principle is included in the

Universal Declaration of Human Rights (UDHR)7, the International Convention on Civil and Political

Rights8 and the RDTL Constitution. The Criminal Code also includes many articles that refer to crimes

against personal freedom9, meaning that people will not be subjected to:

a. Cruel, Inhuman and Degrading Treatment

PNTL, F-FDTL, Immigration officers, or Prison Guards, depending on their functions, can use force in

situations of legitimate defence (self-defence), article 28 (2) CRDTL, article 4 (1) Decree-Law n.

43/2011, 21st of September (Legal Regime on the Use of Force), when detaining (article 4 (1) Decree-law

n. 43/2011, 21st of September (Legal Regime on the Use of Force), to establish public order (article 9

and article 10 Decree-Law n. 43/2011, 21st of September (Legal Regime on the Use of Force), to

maintain order amongst detained or arrested persons (article 11 and article 12 Decree-Law n. 43/2011,

21st of September (Legal Regime on the Use of Force), or to defend others where there is illegal

aggression against physical integrity (article 4 (1) Decree-Law n. 43/2011, 21st of September (Legal

Regime on the Use of Force).

b. Arbitrary Detention

According to the Criminal Procedures Code (KPP), the objectives of detention are; a) to present a

person for summary judgement, or to bring an accused person before the court for the first judicial

cross-examination or to apply measures in accordance with a court decision (art. 217 (1) (a) KPP); or b)

to guarantee the detained persons presence before the court in accordance with court procedure (art.

217 (1)(b) KPP).

When found in flagrante delicto, they may be detained if the crime is punishable with a prison

sentence (art. 218 (1) KPP). In accordance with article 219 KPP, a crime is considered in flagrante

delicto when it is in the process of being or most recently committed. A crime is also considered to be

in flagrante delicto when having committed a crime, a person(s) or their agent is found to be in

possession of objects or indications that the crime has just been committed or of having participated in

the crime.

6 Article 30 RDTL Constitution, (Right to individual freedom, security and integrity).

1. All persons have the right to personal freedom, security and integrity. 2. No person can be unlawfully arrested nor imprisoned, and all detainees and prisoners must be brought before a judge with the power for review within the legally determined timeframe. 3. All persons who have lost their libnerty must immiediately receive information about the reason for their imprisonment, and while in prison have the right to health treatment, and permission to speak with legal counsel or a trusted friend. 4. No person may be subject to cruel, inhumane or degrading treatment (TAKLU). 7 Article 3 UDHR All persons have the right to life, to freedom and to personal security.

8 Article 9, ICCPR

9 Criminal Code, Chapter III Crimes Against Personal Liberty include threats, coercion, serious coercion,

kidnapping, etc.

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When not in flagrante delicto, there must normally be a court order from a judge (art. 220 (1) KPP).

However, even in the absence of an arrest warrant from a judge, the law provides for authorities to

make arrests (detentions).

Principle 2: Freedom from intimidation All persons have the right to be free from threats or

intimidation from any person or the State. The State must guarantee that all persons are able to live free

from intimidation. The RDTL Constitution10, Criminal Code11 and the ICCPR12 all mention this.

Principle 3: Freedom of opinion and expression - All persons have the right to express their opinions to

public entities, private groups, public groups and other persons. No person or group can prohibit them

from expressing their opinion or expressing themselves. The RDTL Constitution mentions in Article 40

the Right to Speak and to Information13 and the ICCPR mentions in Art. 19 and 20 the Freedom of

Expression. 14

Principle 4: Right to freedom of movement (circulation) All persons have the right to move freely

about their place and to conduct their daily activities, without impediment from any person, group and

the State. The State has an obligation to guarantee their freedom of movement and the conduct of their

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In many articles in the Constitution that include freedom from intimidation. See: Art. 29, Right to Life, Art. 30 Individual rights to freedom, security and physical integrity, art. 40 Freedom of speech and to information, Art 42. Freedom of meetings and to protest etc. 11

Article 157, Threats 1. Any person, who threatens another person with a crime to make them afraid or insecure or to prejudice their freedom of self-determination shall be subject to a penalty of prison of up to two years of a fine. 2. There must be a complaint in order for there to be a criminal proceedings. Art. 170, Freedom to conducts meetings and to protest 12

Article 6 (1) ICCPR: "All persons have eht inherent right to life. This right is protected by law. No person may be arbitrarily deprived of their right to life." -Article 7 ICCPR: " Ema ida sei la bele hetan sujeisaun ba tortura, ka tratamentu no kastigu krul, dezumanu no degradante. Liliu, ema ida sei la bele hetan sujeisaun ba esperimentasaun mdika ka sientfika, lah ninia konsentimentu livre." -Article 9(1) ICCPR: "All persons have the right to freedom and personal security. No person may be subjiected to arbitrary imprisonment or detention. No person may have the liberty taken away except for reasons and through procedures provided for in law." -Article 17 ICCPR: (1) No persons my be subjected to arbitrary or illegal interference with the privacy, family, home or correspondence, and also to illegal attacks on their honour and good name. (2) All persons have the right to protection under law from any interference. 13. Article 40 RDTL Constitution 1. All persons have the right to freedom of speech and the right to obtain anby information and to correct information. 2. Freedom of speech and to information may not be subject to any limitations or censorship. 3. The law will regulate the rights and freedoms mentioned in this Article, on the basis of the imperative of respect for the Constitution and respect for the dignity of citizens. 14 - Article 19 (1): ICCPR " Each person has the right to their own opinion without interference. (2) ICCPR: "Each person has the right to freedom of expression, this right includes the freedom to seek, recieve and provide information and different ideas, withotu boundary, oral, in writing or as artistic impressions or through anby means they wish. - Article 20 (2): ICCPR Any advocacy of national, racial, or religious hatred which constitutes an incentive to discrimination, hostility of violence is prohibited by law.

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activities.15 16However the State has to identify the need to balance two priorities peoples right to

meet and protest and the need to guarantee public order.17

Principle 5: Right to privacy All persons have the right to privacy including of their home, possessions

and their private correspondence.18 The State or any person cannot enter a persons home without the

knowledge of the owner.19 If the police wish to enter a persons house they must have authorisation

from a court.20

Interference with a persons home in relation to a crime scene

Crime scenes are specifically regulated by the Criminal Procedures Code (KPP). Where a crime has occurred, police agents or the Public Ministry (MP) may conduct a search of a persons home. The search of a home is as a means to find evidence. A search of a home can be conducted when there is any object that must be seized or any person that must be arrested (article 168 (2) KPP). In accordance with the KPP, a distinction is made between searches conducted during daylight (from 06:00 AM to 08:00 PM) and searches conducted at night (from 08:00 PM to 06:00 AM). During the day, it is sufficient to have a judicial dispatch or written consent from the home-owner to conduct the search (article 169 (1) and article 171 (1) KPP). Even though there is no written consent from the home-owner, nor dispatch from a judge, the police can conduct searches when there is urgency or when any delay may give rise to danger (a situation when the police cannot wait or have no other means to guarantee the protection of evidence) (article 169 (6) KPP). When in a situation relating to terrorism, violent criminality or organised crime, searches can be conducted without court dispatch or written consent from the home-owner if there is an order from the Public Ministry (based on strong indications of an imminent crime, that constitutes a risk to peoples lives or physical integrity) (article 4 Decree-Law No. 4/2006, 1st of March (Special Regime for Criminal Proceedings for Cases of Terrorism, Violent Criminality or Organised Crime).

At night, police agents or the Public Ministry can enter a persons home when there is written consent from the owner (article 170 and article 171 (2) KPP). If there is no written consent from the owner, the police of Public Ministry can enter a building when there is a major threat to the lives or physical integrity of people inside the building (article 37 (3) CRDTL).

15 Article 12 (1): ICCPR "All legal persons in the State territory, while within the territory, have the right to freedom of movement and the freedom to choose their residence." (3) ICCPR: "The rights to expression above may not be subjected to any restrictions, except those determined by law deemed to be necessary to protect national security, public order, public health or moral values or the rights and freedoms of other people, and also consistent with the other rights enshrined in this Constitution 16

Article 170, Criminal Code, Freedom of Meetings and to Protest 17

Law No. 1/2006 Freedom of Meetings and to Protest 18

Article 185: Violation of Residence 19 Article 37 (No.2), CRDTL Entry into any persons home, against their wishes, can be done only with a written order for a judicial authority with the power to do so, in accordance with the case and form set out in law. 20 Article 17 (No.1) ICCPR No person may be subjected to arbitrary interference with the privacy, family, home or correspondence, and also to illegal attacks on the honour or good name

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Objective

Based on the information received by the PDHJ from community members, civil society and from

monitoring activities, the PDHJ conducted monitoring of implementation of Parliamentary Resolution

No. 4/2014, Government Resolution No. 08/2014 and Government Resolution No. 13/2014 issued by

the National Parliament and the Government to security forces and the military to stop the activities of

the illegal groups. Thus the principle aims of the monitoring were:

1. Preventative Action: (i) Prevent PNTL members from using force in an illegal manner and prevent PNTL entering houses or offices in an illegal manner. (ii) Analyse the Parliamentary and Government Resolutions to determine if there was a legal basis for the States action.

2. Monitoring Action: (i) Observe the situation of the community to monitor whether they felt safe or not. (ii) Observe actions of PNTL or F-FDTL members to identify if there was any intimidation against the community.

3. Advocacy Action: (i) Collect data regarding the humanitarian situation specifically those families impacted by the actions of PNTL or F-FDTL members. (ii) Send recommendations to the parliament or State institutions regarding the direct impacts of the security situation and other relevant human rights issues arising from the actions based on Parliamentary Resolution No. 4/2014 and Government Resolutions Nos. 8/2014 and 13/2014.

Following monitoring, recommendations were sent to public authorities to prevent future violations

and to guarantee that victims of actions are able to receive compensation or remedy.

Methodology After Parliamentary Resolution No. 4/2014 assigned the role to the PNTL to terminate the activities

of the CPD-RDTL, KRM and other groups identified as illegal, the PDHJ monitoring team travelled to the

districts to conduct monitoring and direct observations of the general situation at the location of

operations. The team, comprised of 6 people, commenced monitoring from the 18th of March 2014 until

the 25th of April 2014. During this time, the monitoring team conducted monitoring activities 9 times in

10 districts and 22 sub-districts. The means of gathering information used included; direct observations,

use of forms and interviews.

During monitoring activities the PDHJ interviewed 132 people, composed of 94 men and 41 women.

It is important to clarify that, when the PDHJ commenced monitoring of the implementation of

Parliamentary Resolution No. 4/2014, the PDHJ monitoring team visited 10 districts. Once Government

Resolution No. 8/2014 was added, the PDHJ monitoring team focussed on conducting monitoring in

Baucau and Viquequein accordance with the mandates of the Resolution itself. The following graph

shows the number of interviews conducted by the PDHJ monitoring team.

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The PDHJ monitoring activities focused on 5 groups, including: local authorities, PNTL, CPD-RDTL,

KRM and other group members, detained persons and also community members impacted by the

actions of PNTL and F-FDTL. The PDHJ conducted interviews with community members that live close to

the CPD-RDTL, KRM and other groups residences. In reference to PNTL and other authorities, the PDHJ

conducted interviews based on their involvement in activities and actions undertaken by the State. The

authorities interviewed by the PDHJ included sub-district administrators, PNTL district commanders,

PNTL sub-district commanders, military authorities and suco and aldeia chiefs in those areas impacted

by PNTL and F-FDTL actions. The following graph shows monitoring of target groups interviewed by the

PDHJ team.

5 8

12

34

4

12 10 9

0 0 6

17

0 7 7 4 0

5

10

15

20

25

30

35

40

Numbers of men and women interviewed

Mane

Feto

10

16

35

48

8

0

10

20

30

40

50

60

PNTL Autoridades CPD/Grupu Seluk

Povu Prizoneiru no detidu

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Monitoring activities were conducted in the districts, sub-districts and sucos where there was identification of groups of CPD-RDTL, Bua Malus, KRM, Kristu Dudu La Ba, Forsa Defeza 75 and Forsa Nakukun. The monitoring team chose these areas because the PNTL conducted actions against groups in these areas and the communities living there experienced impacts from the activities of PNTL, F-FDTL and other groups. The following table shows the geographical areas identified by the monitoring groups:

District Sub District Reason for visiting area

Cova Lima 1. Zumalai 2. Suai 3. Tilomar

1. CPD-RDTL, Bua Malus 2. CPD-RDTL, Bua Malus 3. CPD-RDTL, Bua Malus

Ainaro 1. Casa 2. Ainaro Vila

1. CPD-RDTL 2. Bua Malus, Frsa Defeza 75, CPD-RDTL

Baucau 1. Baucau Vila 2. Laga 3. Quelaki 4. Baguia

1. CPD-RDTL, KRM and Bua Malus 2. CPD-RDTL, KRM 3. CPD-RDTL 4. CPD-RDTL and KRM

Manufahi 1. Manufahi Vila 2. Betanu

1. Bua Malus, CPD-RDTL 2. CPD-RDTL

Viqueque 1. Uatolari 2. Uatocarbao

1. CPD-RDTL 2. CPD-RDTL

Aileu 1. Aileu Vila 2. Likidoi 3. Remexio

1. Bua Malus, Kristu Dudu La Ba, Frsa Nakukun, CPD-RDTL

2. Grupu Bua Malus 3. Grupu Bua Malus, Grupu Kristu Dudu La

Ba, Frsa Nakukun

Ermera 1. Ermera Vila 2. Letefho 3. Hatulia

1. CPD-RDTL 2. CPD-RDTL, Grupu Bua Malus 3. CPD-RDTL, Bua Malus (just two people)

Manatuto 1. Laclubar 1. Grupu CPD-RDTL

16

Analysis

Parliamentary and Government Resolution.

The National Parliament stated that, (i) it considers these illegal groups and their followers as not

just making various demands of a political nature, but also of making threats in concrete measures,

against the sovereign organs of the RDTL, whether or not the President of the Republic acted in

accordance with their demands or not. (ii) considers that, these threats represent coercion against the

Constitutional organs and include crimes against the State in accordance with that which is described by

the Law in article 202, of the Criminal Code. (iii) considers that in all their subversive manoeuvres, they

used military uniforms, in clear violation of articles 43s 43.n.3 and 146 of the Constitution, and of

other rules in vigour at the present time, particularly those foreseen in the F-FDTL Organic Law approved

by Decree-Law No. 7/2004, of the 5th of May in the National Security Law approved in Law No. 2/2010,

of the 21st of April and in the Penal Code. (iv) considers that, these illegal groups have the aim of

committing the crime of criminal association, where the law prohibits military formations and that this is

considered as the usurping of functions and that this threatens the subversion of constitutional order

against the security of the State, which is subject to imprisonment in accordance with the provisions of

the Timor-Leste Criminal Code, respectively in articles 188, 194 and 2012

The PDHJs Perspective on the National Parliamentary Resolution

For the reasons mentioned above, members of the National Parliament made legal qualification of

the facts and stated that the facts represent specific crimes. However according to the Criminal

Procedures Code (KPP) approved by Decree-Law No. 13/2005, on the 1st of December, entities with the

authority to determine whether or not the facts represent any crime, do not include the National

Parliament.

In order to determine whether the facts represent a crime requires a process of inquiry, which once

having met its objectives and with sufficient proof can produce an accusation that can be used to charge

an individual or group suspected of having committed a crime.21 According to the KPP, the entity with

the role of making indictments is the Public Ministry.22 According to article 236 of the Criminal

Procedures Code, which governs the issuing of indictments, if sufficient indications are found during an

inquiry to show that a crime has occurred and who has committed that crime, then the Public Ministry

issues an indictment.23 The indictment, in accordance with number 3 of article 236, must include the

21

Article 225 Criminal Procedures Code 22

Article 48 (2)D Criminal Procedures Code 23

Article 236 Criminal Procedures Code 1 When an equiry finds sufficient indication that a crime has been committed and by whom, the Public Ministry issues an accusation (charges), within 15 days. 2 There are sufficient indications when these indications enable to the belief that the judgement will apply a custodial sentence to the accused. 3 The indictment must include who and the existence of any invalidation: a) Indications that identify the accused; b) The facts that constitute the crme or have relevance to the sentencing or security measures; c) The substantive norms (laws/statutes) that apply in the case;

17

facts that constitute the crime or that have relevance to the determination of the penalty or security

measures (line b.) and also the substantive norms that apply in the case (line c.). Thus, the dispatch of

the indictment represents the moment at which the Public Ministry makes its legal qualification

(evaluation of the facts). The result from the KPP is that the Public Ministry (followed by the court24) are

the entities that can issue legal determinations. It is not the role of the parliament to determine if an

individual or group is illegal or not, has been involved in a crime or not, nor to determine if the facts

represent a crime or otherwise.

Also, the PDHJ underlines that, the Constitution divides powers between the Parliament and the

Government, the President and the Courts. It is most important that one part does not try to take the

decision of another nor to interfere in the work of one of the other parts, which is to say, that it is

important to respect the separation of roles and powers between institutions. It is most important to

respect the power of the Public Ministry to conduct criminal actions (article 132-1 CRDTL) and the

power that arises from the Criminal Code and the Criminal Procedures Code.

The text of the Resolution in question and also paragraph three of the Resolution which, demand

the organs and institutions of the Republic, particularly the Government, the Public Ministry and the

PNTL, based on their individual respective competencies, to take urgent measures foreseen in the

constitution and law regarding people conducting crimes, in order to restore the security and tranquillity

needed by citizens can be seen as constituting interference by the National Parliament in the

responsibilities of other authorities (powers).

The PDHJs Perspective on Government Resolution No. 08/2014

Article 35 number 2 of the National Security Law states that, engagement of the F-FDTL comes from

the joint decision of the Government and the President of the Republic, in his capacity as the Supreme

Commander of the Armed Forces, in accordance with special legislation relating to national defence25.

Even though there was consultation with the President of the Republic before taking the decision

about the joint operational engagement of the F-FDTL, the law requires that the decision comes from

the President of the Republic.

The PDHJ is also concerned with the justification of the joint operations engagement between the

PNTL and F-FDTL. According to the National Security Law, article 35-1, the presumption for engagement

d) Date and signature 24

According to Article 274, When it is deemed that the facts entered in the indictment require fuurther legal evaluation, despite the new legal evaluation having a higher maximum penalty, the court informs the Public Ministry and the Defence, and, if antone requests, provides a deadline for the preparation of a procedural position. 25

Article 35-2 of the National Security Law says that: O empenhamento das F-FDTL decidido, em conjunto, pelo Governo e pelo Presidente da Repblica, na qualidade de Comandante Supremo das Fras Armadas, nos termos da legislao especial relativa Defesa Nacional.

18

is the insufficiency of capacity to act on the part of one entity26. It is important that the Government and

President of the Republic, when deciding to conduct a joint operation between entities, such as the

PNTL and F-FDTL, examine the need for joint engagement and based on their decision, conclude that,

the action of one force is not sufficient to respond to the situation.

Government Resolution No. 13/2014, 7th of May

Government Resolution No. 13/2014 decided to extend the active joint operational engagement

between F-FDTL and PNTL throughout the entire territory. Considering the analysis above regarding

article 35-1, of the National Security Law, the decision to extend an operation must be the result of a

conclusion that, the PNTLs effective capacity continues to be insufficient to conduct the operation on its

own. The PDHJ asks for attention to be given to the need for the decision to include justification of the

need to continue to involve the F-FDTL in the operation.

Results of Monitoring at the Grassroots

The monitoring team conducted monitoring and direct observations in the locations identified for

implementation of the resolutions. Parliamentary Resolution No. 4/2014 applied to all districts in the

territory of Timor-Leste. Following this, Government Resolution No. 8/2014 applied to the 2 districts

with strong relationships with the CPD-RDTL and KRM groups being Baucau and Viqueque.27 The PDHJ

focused on 10 districts in Timor-Leste with the greatest presence of CPD-RDTL and KRM groups. The

following are the results of the monitoring:

Baucau

The PDHJ conducted monitoring activities three times in Baucau between the 19th of March and the

25th of April for a total of 12 days. During this time, the PDHJ visited four sub-districts, 10 sucos and 12

aldeias.28 The monitoring team interviewed 48 people in Baucau, 34 men, 17 women (see graph below).

The activities included interviews with PNTL, other authorities, CPD-RDTL members and also members of

the general community. The PDHJ used a questionnaire to conduct interviews regarding the impact of

the joint operations actions in the district of Baucau, because the monitoring team identified Baucau as

26

Article 35 -1: O empenhamento das F-FDTL decidido, em conjunto, pelo Governo e pelo Presidente da Repblica, na qualidade de Comandante Supremo das Fras Armadas, nos termos da legislao especial relativa Defesa Nacional 27

Government Resolution No. 8/2014 approving the continuation of the joint operation between PNTL and F-FDTL in the sub-Districts of Laga, Suco Lalulai and Samaguia, sub-District Quelicai, suco Afasa, Baguia, Labalo, Wekubuti and Namane, sub-Distritctu Baguia, Suco Samalari, Weibitae and Lavateri (Baucau) and sub-Distritu Watolari (Viqueque) 28

Monitoring team visit to Suco Abu, Afaa, Guruza, Lalulai, Namanei, Sagadate, Samalari, Samalari Buibau, Soba and Trilolo. The PDHJ visited the following aldeias: Boleha, Borelai, Daicou, Fap-up, Kareido, Lalulai, Lotu-motu, Samalari, Selegua, Selulai, Trilolo and Uecobuti.

19

an area of risk.29 This questionnaire focused on five issues general security, freedom from intimidation,

freedom of association, freedom of opinion and of expression, and freedom of movement.30

Freedom from intimidation

Based on Parliamentary Resolution No. 4/2014, the PNTL had a duty to socialise to the community

the activities included in the resolution. Interviews with authorities in Baucau show that 100% of the

authorities shared information with the community about the resolution.31 The activities of the joint

operation conducted based on Resolution No. 8/2014 did not work together with local authorities to

share information with the community. The PNTL organised meetings with local authorities and

community leaders to inform them about Government Resolution No. 8/2014 however, according to

interviews the PDHJ conducted with several suco chiefs, in this meeting the PNTL did not explain the

actions in relation to Government Resolution No. 8/2014. Because of this reason the community in the

joint operational area experienced panic and fear when the joint operation commenced in their area.

Obliging people to provide information

The RDTL Constitution guarantees the rights of all citizens to personal freedom, security and physical

integrity.32 The Constitution also expressly prohibits persecution based on the individual beliefs, political

views, philosophy etc.33

29

Please refer to the questionnaire template in the annex. 30

The questionnaire made by the PDHJ does not reflect a respresentative survey The PDHJ monitoring was urgent monitoring becauwse of the time limit was not sufficient to enable planing of a more in-depth survey. For this reason the statistics in the report do not necessarily reflect the perspective of the entire community. However they represent the views of those living near the joint operational areas. 31

Authorities include PNTL Station Commanders, Suco and Aldeia Chiefs. 32

RDTL Constitution, Article 30 Point 1-4 (Right to individual freedom, secuity and physical integrity) 33

RDTL Constitution Article 38 Point 3 (Protection of personal information) Digital alteration of information on the basis of individual life, political convictions, philosophy, religion, political party affiliation or labour union and ethinic original is specificall prohibited without permission from the owner of the information.

34

17

0

10

20

30

40

Mane Feto

Number of women and men interviewed in Baucau

20

From monitoring activities, it was identified that 53% of respondents living in the operational area

felt intimidated by joint operation members obliging or pressuring the community to provide

information and facts that the community themselves did not know.

Box One: Incidents obliging (forcing) persons to provide specific information

First case:

On the 14th of April at 08:00 AM S.P. went to tend his goats, the joint operations commander met

S.P. and this police member asked him: do you know Koboi? S.P. responded, I dont know him The

police member said, Youre an adult and you dont know him? The police member hit his body, and

pounded his rifle butt in S.Ps stomach, and asked S.P. for his telephone, S.P. responded with his

mother. So he sent S.P. directly to get his phone from his mother, and to give it to that Police. Then he

was taken to the Lalulai post, then was handed over to Sr. X. Whom the commander arrested and took

to Lalulai, then brought the phone back and returned it to S.P., at his home. (S.P. Child of 14 years)

The first case shows that;

When the joint force conducts action and hits and rifle butts S.P in the stomach this shows the that

joint force has made a violation of the right to freedom of physical integrity and security, a sub

category of cruel, inhuman and degrading treatment34.

The joint force also commited violations of the right to freedom of expression and information when

using force to oblige a person to provide information through the use of force.35 Right of the child to

live free from violence or abuse36.

Also the joint force took S.P.s telephone against his will, to obtain information demonstrating that

the joint force violated the right to property, sub-category of arbitrary interference in the private

property of an individual37

Case number two:

On Monday the 14th of April 2014 at 07:00 AM a joint team composed of F-FDTL and PNTL went to

Sra. JGs home. There were many F-FDTL members and one PNTL only. The PNTL member brought a

notice to advise the community, then they entered Sra. JGs home, five F-FDTL members searched the

house and bedrooms. The PNTL member directed Sra. JG to open the cupboards, and take out the

clothes to be searched. Then the PNTL member directed Sra. JG to dig up the floor inside the room,

because of suspicion that rifles or grenades had been buried there. The PNTL member also threatened

her saying you dig that spot fast, if not I will throw a grenade at you and you will lick the ground and the

stones there. There was no letter to explain to Sra. JG but after digging the hole, no rifles or grenades

were found, so the PNTL member went outside and apologised to Sra. JG three times, but Sra. JG did not

34

CRDTL art. 30 (4); ICCPR art. 7; CRC art. 37 (a). 35

CRDTL 40 (1); ICCPR art. 19 (1); CRC art. 13. 36

CRDTL 18. (1); ICCPR art (7); CRC art (19) 37

CRDTL 54. (1)

21

accept, as she was very sad and afraid.

J.G. A woman of 43 years

The second case shows;

The joint force entered a persons home without a warrant from the court, which shows that the joint

force violated the Right to Privacy of Home or Correspondence; sub-category Arbitrary Interference

with a Persons Home.38

The joint force obliged a civilian to dig up the ground to search for a grenade may be a threat to a

persons life and the act of threatening with the words, you dig that spot fast, if not I will throw a

grenade at you and you will lick the ground and the stones there shows that the joint force violated

citizens Right to Life, Sub-Category Threaten to Kill.39

The joint force forced an old lady to dig up the ground looking for evidence, shows that the joint

force violated the Right to Freedom of Physical Integrity and Security, Sub-Category Enslavement of

Forced Labour.40

Feeling free from intimidation

Based on the results of interviews and the questionnaire the PDHJ used in the joint operations area,

41% of respondents felt that their community was not an environment free from intimidation by the

PNTL, F-FDTL or community leaders. For the first PDHJ monitoring, based on Parliamentary Resolution

No/ 4/2014, the situation, in general, in sub-district Laga in Baucau, movement was normal and people

were free to go about their daily activities as normal. When the monitoring team interviewed several

community members, they did not mention intimidation from PNTL or CPD-RDTL or KRM groups.

38

CRDTL art 37; ICCPR art 17 39

CRDTL art 29; ICCPR art 6. (1) 40

CRDTL art 30 (4); ICCPR art 8

0

20

40

60

la fo presaun fo presaun la hatene

PNTL/FFDTL pressured and forced people to provide information about

activities

22

Following this the activities of the joint operation reflected intimidation. The community felt

intimidation from PNTL and also F-FDTL conducting operations in their area. Normally intimidation

occurs because of a lack of informationit is normal for the community to feel surprised when they see

the presence of a joint PNTL and F-FDTL force in their area. The information the community were aware

of was that the State sent them to shut down the CPD-RDTL and KRM in their area. However,

information about the presence of the PNTL and F-FDTL was not known by the community themselves.

Because of this lack of information the community in some sucos felt afraid because of the rumours

circulating in the community.

In relation to community feelings in the following graphic, when the monitoring team asked the

community if the PNTL/F-FDTL used excessive force when entering their sucos, 34% said, PNTL/F-FDTL

used excessive force. Statistics from the sub-district Laga, show that 60% of people said PNTL and F-FDTL

used excessive force when entering their aldeia. The highest percentages were in the Sucos of Samalari,

Sagadati and Soba and the lowest in Aldeia Lalulai.

0

20

40

60

40.625 46.875 12.5

ambiente laos livre ambiente livre la hatene

Is the environment free from intimidation by PNTL or F-FDTL or

community leaders?

0

10

20

30

40

50

60

70

34.375 62.5 3.125

uza forsa makas la uza forsa makas la hatene

% saying Polsia/F-FDTL used excessive force to enter the Suco

23

Box Two: Specific occurrences of intimidation with force

Case Three;

On Monday the 21st of April 2014, at midnight the joint team came on foot, shouting out saying wake-

up, wake-up. Then the kicked the door of Sra. TC to wake her and open the door, she came out, F-FDTL

and PNTL members, standing outside, and asked Sra. TC, Do you know L-3?. Sra. TC replied, L-3 is my

husband, but they were previously gathered at Lalulai and havent come back yet. But the joint force

said further, you dont know, you have been cooking for them in the forest, you say again that you dont

know? The joint force called Sra. TC, with her two children and said, come sit on this bamboo

platform. So they also came out, Sra TCs son named Sr. DD came from the house, an F-FDTL member

hit him immediately with his rifle butt in the head, but not hard and hit his body and the back of his

neck, and kicked him once in the back. They took Sra. TCs two children to wait beside the Church, and

several PNTL and F-FDTL members brought another four people together with Sra TC and her two

children. Together the seven of them were taken to the Aldeia office. When they got to the Aldeia

office, the joint operations members told them to line up. Then the joint force members insulted them

saying, to Sra TC and the others your husband(s) are hiding, you are cooking and taking food to them to

eat, so that they can stay in the forest and make us patrol at night, and not feel tired during the day.

Then having said that they kicked Sr. DD and took them all to the PNTL office in Baucau, after the

investigation, put them in the police cells, from early in the morning until 4:00 PM at night when they

took them back home.

Sra. TC., Sub-District Laga

The third case above according to PDHJs analysis shows;

When the joint force used actions such as hitting Sr. DD. in the back of the neck and kicking in the

back, and hitting with rifle butt, this shows that they violated the right to physical integrity and

security, sub-category cruel, inhuman and degrading treatment41,

When the joint force detained people without an arrest warrant, this shows that the joint force

violated the Right to Freedom of Physical Integrity and Personal Safety, Sub-Category, Arbitrary arrest

and detention.42

There is also analysis that the joint force swore at and insulted people in a public place, showing that

the joint force violated the Right to Honour and Privacy, Sub-Category Arbitrary attacks on Honour

and Reputation.43

When the joint force arrested people and took them to the Police Station for investigation but did not

provide any notification of a Crime to the Public Ministry, the PDHJ analyses this, as a violation by the

joint force of the citizens Right to Access to Court Sub-Category Lack of Accusation or Failure to

Register a Crime or Not Communicating with the Public Ministry44.

41

CRDTL art. 30 (4); ICCPR art. 7; CRC art. 37 (a). 42

CRDTL art 30. (2,3); ICCPR art 9.(1) 43

CRDTL art 36; ICCPR art 17 44

CRDTL Art 26; ICCPR Art 2 (3); ICESCR Art 2 (1)

24

Adding to these behaviours the PDHJ concludes that the members of the joint force committed

violations based on the right to freedom of expression and information, when they forced people to

provide information through use of force.45

Box Three: Cruel treatment and excessive use of force

Case Four;

On Monday, 14th of April 2014, at 07:00 AM, one PNTL member and 30 F-FDTL came to call Sr. D to

take him to the Joint Operations post in Lalulai. Once there they asked Sr. D, Do you know the people

from CPD-RDTL and KRM who have fled to the forest? Sr. D replied, I dont know. So in the morning the

sent Sr. D back to his home. On the 21st of April 2014, at midnight the joint operations force returned to

Sr. Ds house and called and shouted out to Sr. D saying, Are you coming out or not? So Sr. D opened

the door and came out, the PNTL and F-FDTL members put hand-cuffs on Sr. Ds wrists, and punched

him in the head once and then asked Do you know Lemorai and L-3? Sr. D responded, I dont know

The joint force sente Sr. D to the Suco office and a car came and took him to Baucau. He was put in the

Police cells for one night, and on the 22nd of April 2014 in the afternoon he was driven back to Sr. Ds

home.

Sr. D, Sub-District Laga

Case Five;

On the 21st of April 2014, at midnight, police and F-FDTL members called Sr. J to come out and put

hand-cuffs on him immediately and took him to the underneath of the Sacred House, one PNTL member

(un-named) kicked him in the chest, and now Sr. J is coughing blood.

Sr. J Sub-District Laga

Analysis of cases four and five show that;

When the joint force arrested people, and committed unauthorised actions such as punching and

kicking that was not balanced against the physical strength (or response) from the person being

arrested, the PDHJ analyses that this behaviour shows that the joint force has violated citizens Right

to Freedom, Physical Integrity and Personal Security, Sub-Category, Cruel, Inhuman and Degrading

Treatment46.

Furthermore, when looking at the behaviour of the joint force conducting actions at midnight, without

explanation of the crimes committed, but putting them directly in hand-cuffs, taking them to the

police detention cells, the PDHJ analyses that in this part, the joint force violated the citizens Right to

Freedom, Physical Integrity and Security; Sub-Category, Arbitrary Arrest and Detention.47

45

CRDTL 40 (1); ICCPR art. 19 (1); CRC art. 13. 46

CRDTL art. 30 (4); ICCPR art. 7; CRC art. 37 (a). 47

CRDTL art 30. (2,3); ICCPR art 9.(1)

25

In relation to the joint force obliging people to provide information using force, the PDHJ indicates

that the joint force violated the Rights of Citizens to Freedom of Expression and Information.48

Case Six;

On Friday the 26th of April, 2014, at 6:00 PM an unknown party telephoned to Sr. ANM saying, where

are you at present? Sr ANM responded Im in Dili. They said, they took the money we collected for

CPD-RDTL, do you comrade have money to put together to look for a Defence lawyer to help get our

colleagues from prison? After he heard this Sr. ANM hung up the telephone.

On Sunday April 27th 2014, at 10:30 an unknown group telephoned asking, the money has been put in

a car, so you just wait in Baucau to receive the money. The Sr. ANM went out to meet a friend CM, and

called him saying, lets the two of us go down there? So his friend CM got on his motorbike, and he

said to CM that, later, when we get there, if those people are really CPD or other people, you go speak

directly with him. Then Sr. ANM telephoned to tell the PNTL to arrest him because he was telephoning

Sr. ANM day and night. Then the two of them went there, and it was not CPD-RDTL members, but the

joint force wanting to trick them. According to Sr. ANM, the moment the two of us arrived, they (the

joint force) arrested the two of us, took us to Lanud, then they punched me in the side, in my hands,

kicked me in the knees and in the kidneys. The joint force members said, You need to tell us the truth,

if not, you will be dead. Sr. ANM responded saying, so shoot me then, Im ready to die.

Sr. ANM added further that, at 12:30, they took us back to the police cells for 72 hours. On the 30th of

April, they took us to the Prosecutors office in Baucau. Then back home. Now we are waiting for our

trial.

Sr. ANM, Sub-District Laga

Upon study of the chronology of Case Six, PDHJs analysis shows that;

When the joint force use excessive physical force such as punching in the side, kicking in the kidneys,

this is prejudicial to the health of the community member targeted thus, this, based on human

rights standards, is a case of human rights violation by the joint force against the citizenss Right to

Freedom, Physical Integrity and Personal Safety: Sub-Category Cruel, Inhuman and Degrading

treatment.49

Based on analysis of the words used to threaten them by the joint force, saying, You need to tell us

the truth, if not, you will be dead, the Provedoria categorises this behaviour as showing the joint

force violated the citizens Right to Life, Sub-Category Threaten to Kill.50

Further analysis shows that the joint force violated the Right to Freedom of Expression and to

Information, when the joint force forced people to provided information using force.51

48

CRDTL 40 (1); ICCPR art. 19 (1); CRC art. 13. 49

CRDTL art. 30 (4); ICCPR art. 7; CRC art. 37 (a). 50

CRDTL art 29; ICCPR art 6. (1) 51

CRDTL 40 (1); ICCPR art. 19 (1); CRC art. 13.

26

Case Seven;

On the 21st of April 2014, at midnight, the joint operation came with one PNTL and five F-FDTL with

one dressed in shorts and asked in a loud voice for Sra. ASs son to come out. Then the PNTL and F-FDTL

asked, Is Sra. L here? Then Sra. AS came out, the member dressed in civilian clothing called those

dressed in military uniforms to take her to the Aldeia Office. At that time, one soldier, kicked Sra. AS in

the left knee once and in the left shoulder once also. Sra. AS felt afraid, because the joint force was

waiting at the Aldeia Office. Then the police car came to take them, to the PNTL station in Baucau, to

submit to the investigation then directly to the cells. Sra. AS was together with 8 friends. In the cells they

received a meal for one day. On the 22nd of April they were taken back to their homes.

Sra. AS. Sub-District Laga

Reference to the behaviours in Case Seven according to the Provedor, show;

When the joint force kicked Sra. AS in the knee and shoulder this created a traumatic situation for

her feelings, not just as a human being, but as a mother who did not deserve to be treated with

physical aggression by the joint force. This physical aggression shows that the joint force violated the

Right to Freedom, Physical Integrity and Personal Safety, Sub-Category Torture, Cruel, Inhuman and

Degrading Treatment52. Here, the Provedoria notes that the scale of force must be proportional, with

the response from the community, not to undermine the role of the joint force but to ensure that

there are benefits from the objectives of an effectively planned operation.

To go further with this case, according to the Provedoria, whenever the joint force arrested a person

and took them to submit to the process of investigation, then immediately at that time, that person

should have received a clear explanation about their case. But the reality shows that after the arrests

they were taken and submitted to the process of investigation and detained in a cell without the

provision of a clear explanation to that person about the case against them and according to the

Provedoria the joint force violated the citizens Right to Freedom, Physical Integrity and Personal

Security, sub-category, Arbitrary Arrest and Detention.53

Freedom of opinion and of expression and the right to receive information.

The RDTL Constitution provides protection of the right to opinion and of expression in articles 4054, 4255 and 4356. Article 40 Point 1 also explains that all persons have the Right to Freedom of Speech, and the right to receive information and to receive correct information.57

52

CRDTL art. 30 (4); ICCPR art. 7; CRC art. 37 (a). 53

CRDTL, art 30 (2); ICCPR art 9 (1) 54 CRDTL, Article 40 (Freedom of speech and to information)

27

Looking at the contents and explanation of article 40 in the paragraphs above, the Baucau District

Administrator, the Laga Sub-district Administrator, and the Laga Suco Chief explained that they

organised a meeting with local leaders regarding the joint operation. They said the line of coordination

between PNTL in the Laga Sub-district with the Suco and Aldeia chiefs and the community proceeded

well. Thus the community made way for the joint operation to conduct their work. However in other

aspects, the statement from two Aldeia chiefs to the PDHJ monitoring team said that, they did not

receive any information about the meeting with the District Administrator, and also did not receive any

information about the joint operation. Because of the lack of information some people in Baucau did not

know that they had to carry their ID cards when they left their house with the result that the PNTL

arrested some people without justification.

Box Four: Consequences of Lack of Information

1. All persons have the right to freedom of speech and to obtain information, and to recieve correct information. 2. Freedom of speech and to information cannot be limited by any form of censorship. 3. The law will regulate the rights and freedoms mentioned in this artilce, on the basis of the imperative and in respect of the Constitution and with respcet to the dignity of individuals. 55 RDTL Constitution, Article 42 (Freedom to conduct meetings and protests) 1. All persons have the guarantee of the freedom to meet in peace and without weapons, and without the ned for prior authorisation. 2. All persons have the Right to Protest, in accordance with the law. 56 RDTL Constitution, Article 43 (Freedom of Association) 1. All persons have Freedom of Association, in peace and without violence in accordance with the law. 2. No person is obliged to take part in any association or remain in any association against their will. 3. Armed associations, military and paramilitary associations and organisations wishing to defend ideas of a racists character against any foreigner or to promote terrorism are prohibited. 57

As number 37 above

0 10 20 30 40 50 60 70

59.375 34.375 6.25

la iha oportunidade iha oportunidade la hatene

People have the right to express their thoughts in public meetings

28

Case Eight;

In Resolution No. 4, we knew and worked together with the District and Sub-District Administrators,

the PNTL commander, the aldeia chiefs to distribute/share information. But Resolution No. 8 talked

about a joint operation, we only heard that there would be a further joint operation. But we didnt know

what their work would be; only the technical people can know that. In Resolution No. 8/2014 we also

respected the Government but the operation sometimes asked community members to present their

electoral cards for examination, and they were arrested, when they should have been looking at the list

of people they were looking for, and not just arresting people arbitrarily.

AM, Suco Chief in Baucau

Based on Case Eight the Provedoria analyses that;

If the Joint Force were obeying the rules properly, they would have the duty to cooperate with local

leaders, particularly those living close to the operations target area in order that there would be

no miscommunication between the joint force and local leaders. If the local leaders had received

sufficient information, they would then have the duty to channel it to the communities they lead.

However based on the behaviour in Case Eight above, the Provedoria analyses that, the

implementation of the joint operation gave no explanation to the community about what they

were going to do, and the facts show that the joint force violated the Right to Protection of

Personal Information, Sub-Category Not being given access to personal information58.

Furthermore, in relation to the behaviour of the joint force in asking the community for their

electoral cards and making arbitrary arrests, not using the list of people being targeted by the

operation, this fact shows that the joint force violated the Right to Freedom of Expression and

Information, Sub-Category Limitation of Censorship of Information or Expression59, of the

community living close to the area of operation of the joint force.

At the Suco level, 59% of respondents told the PDHJ monitoring team that they had no opportunity to participate or express their thoughts at the public meeting. These statistics show that the relevant authorities did not share sufficient information to the community about the joint PNTL/F-FDTL operation to stop the activities of the CPD-RDTL and KRM group members.

During the joint operations, local authorities and community leaders had the role to inform the community living close to the operations target area about cooperating with the joint force when conducting the operation. The areas identified were: the Sub-district of Laga including Suco Lalulai and Samagia, Sub-district Quelecai including Suco Avaa, Baguia, Labalou, Wekubuti and Namane; Sub-district of Baguia including Suco Samalari, Uebitae, and Lavateli. In the operation based on Resolution No. 8/2014, the PDHJ monitoring team identified that there was no coordination between PNTL authorities and local authorities. Because of this the local authorities didnt know about the security and military forces operation in the field.

58

CRDTL 38 (1) 59

CRDTL 40 (2) ICCPR art 19 (2.3)

29

In Resolution No. 4/2014 authorities at the suco and aldeia level distributed information to the

community through socialisation, public meetings about what the PNTL where going to do. Based on this

Resolution, the people participating were the District and Sub-District Administrators, the PNTL

Squadron Commander, the Suco and Aldeia chiefs, CPD-RDTL and KRM leaders and members and the

general community. Because of this the community didnt know what the joint operation was going to

do. The suco and aldeia chiefs also didnt know what activities the joint operation was going to conduct,

the information they knew about was that there was a second Resolution from the government.

Right to freedom of movement

The International Covenant on Civil and Political Rights states that all legal persons within the State

territory or within the territory, have the right to freedom of movement and freedom to choose their

residence.60 During emergencies, such as war, the State has the right to limit the right to freedom of

movement but in order to do this it must declare a State of Emergency in the Parliament.61

The PNTL action based on Parliamentary Resolution No. 4/2014, in Baucau proceeded normally and

there was no action from any parties. When the joint operation based on Government Resolution No.

8/2014 commenced the joint operation also conducted searches of vehicles travelling in the area of

Laisorulai, in Suco Lalulai. The operation was able to capture 9 people identified as using military

uniforms, martial arts attributes and weapons (knives and machetes). According to the observations

from the monitoring team, operations in the area starting from Laga to Suco Libagoa, Nunira, Samalari,

Larisula (suco Salari), Terloidae, Lalulai, former KRM gathering point in Lalulai, Sagadati, Atelari, Lafateri,

Defawasi, Samalari, Aloa Kraik and Leten also in the sub-district of Baguia proceeded normally. Learning

activities in schools business activities, agriculture and community movement in these areas proceeded

normally.

The information found by the monitoring team regarding the joint operation conducted in the

operational target area in the Sub District of Laga, Suco Lalulai and Samagia; Sub District Quelecai, Suco

Avaa, Baguia, Labalou, Wekubuti and Namane; Sub District of Baguia, Suco Samalari, Uebitae, and

Lavateliwas that activities and circulation in the area in question was completely stopped. If there

were urgent activities, people could get authorization through the Aldeia and Suco chiefs, and could be

accompanied by the joint force to attend to the needs of the community in the area in question.

Box Five: Incidents of Violation of Freedom of Movement, Cruel Treatment and Intimidation Case Nine;

60

Article 12 (1) ICCPR and also (3) ICCPR: " The rights expressed above may not be subjected to any restrictions, except those determined by law deemed to be necessary to protect national security, public order, public health or moral values or the rights and freedoms of other people, and also consistent with the other rights enshrined in this Convention

30

On the 30tjh of April 2014, I was travelling from the sub-district of Quelecai going back to Baucau, at

that time the car was full, so that I was hanging off all the way to the top of the Sub-district Quelecai,

where the joint operation made a search at midday. When we arrived they made those of us who were

hanging on to the truck to get down on the ground and do push-ups. Then they told the six of us and the

drivers assistant, to get off and stay there. And then from there get another vehicle to Baucau. So the

six of us got off and stopped there. In the end they sent me and two of my friends to Quelecai and the

other two and the drivers assistant got on another car going and got out in Baucau. That just left me

there alone. Then they asked, Are you CPD-RDTL too? I replied, no! Im a student. Then they beat me.

I said to them, if you beat someone you have to let them know before you beat them. When I said this

they punched me in the lower part of the left ear, then swore at me, and hit me in the chest with a rifle

butt. I went down, and they kicked me in the left side twice. They said, that person is really CPD-RDTL

trying to snatch the rifle.

Then they sent me to the police station in Quelecai, to discuss the matter. But I was badly injured so I lay

down on the side of the road, but they continued to force me. So I made myself walk, and half-way

there, we met a small truck that was taking goods to Quelecai. They stopped it and asked the female

owner to help by carrying me. The female owner did not want to, because the car was not supposed to

carry passengers, but to sell goods. The other reason was that the vehicle was not going all the way to

Baucau, just stopping at Seixal.

The police continued to force her saying, carry him to Seixal, and he can get another car to Baucau.

Then the police made me get into that car. Then I met up with my brother whom the police had earlier

sent ahead to Baucau, waiting on the side of the road. So I stopped the car there. He also got up into the

car with me, at Momana, I felt my wound aching, and I slept in the car. When we got to Seixal, a friend

called TG contacted directly the PNTL in the Sub-district of Baucau. They came with a car and took me to

the Hospital in Baucau to the doctor. After they took me back to the Police station in Baucau. At the

PNTL Police Station in Baucau, I provided information.

After that, they sent me to the military police office. I went there, and gave information again. They sent

me to make a statement. Which I indeed did, but there was a Military Police member, who said I should

speak and he would write. At that time, I spoke a lot, but he only wrote a little. So I refused to accept it. I

said, brother, give me the paper and I will write it myself. So he heard me and gave me the paper and

pen. So I wrote it myself. After the MP said that I should sign it and he would read it. So I signed it, and

gave it to him. After he accepted my statement, he said, your statement is a political manoeuvre, so

your statement is not valid. He also added, you have understood politics from school already, what will

you learn in the future, when you complete high school, you wont have any contribution to the nation.

Then he sent me back to my brother with strong words.

Sr. F. Student, Baucau.

Analysis of the ninth case shows;

31

When the joint force use serious physical aggression such as punching Sr. F in the ear, swearing,

beating him with a rifle butt in the chest, and kicking him twice in the side until he was wounded

seriously, at the same time forcing Sr. F in a serious condition to travel, this shows that the joint

force violated his Right to Freedom, Physical Integrity and Personal Safety, sub-category Torture,

cruel, inhuman and degrading treatment62. The Provedoria has the expectation as outlined above

that an operation can be achieved in accordance with the rules so as not to remove the human

rights of citizens, and to avoid prejudicing their life in the future.

The Provedoria is certain that when the joint force arrested this person without showing him the

arrest warrant, and also treating them cruelly that this shows that the joint force made a violation

on the basis of Arbitrary arrest or detention63. The Right to Dignity and Privacy, Sub-Category

Arbitrary attacks on honour and personal reputation64. According to the Provedoria there must be a

baseline (standard) which provides a guide for members conducting operations in the field.

The PDHJ teams experience with searches

On the 1th of April 2014 in Aldeia Larisula, Suco Lalulai, Sub-district Laga, the joint force team

conducted searches of passengers travelling in the area in question. On the same day, the PDHJ

monitoring team travelled to Baguia and was searched by the joint force. The PDHJ team was asked to

present their electoral cards. Even though the monitoring team handed over their work identity cards,

the PNTL member of the joint operation continued to ask for the electoral cards saying this card is for

use in the work place, we need to see your electoral cards The monitoring team was able to meet the

joint operations team commander to explain the role of the PDHJ and to continue its observations of the

searches of travelling community members.

Case Ten shows that:

Based on Article 27 of the RDTL Constitution, which provides for the existence of the PDHJ as an

independent organ, whose role is to monitor, oversee and respond to citizens problems with

public authorities and to examine their behaviours in obeying the law and preventing and taking

measures to ensure justice, and also has the competency to examine concrete cases, without

having the power to decide, but with the power to send recommendations to the competent

organs.

In Article 44 (1) The duty to conduct collaborative activities

Any person, including civil servants, administrative staff and elected officials of civil organs or

military commanders, must collaborate and provide all information requested by the PDHJ in the

conduct of their role.